Eubanks v. Commissioner of Social Security

Filing 21

MEMORANDUM OF DECISION re: 1 Complaint. It is ORDERED that the final decision of the Commissioner is REVERSED and REMANDED pursuant to sentence four of 42 U.S.C. § 405(g); and the Clerk is directed to enter judgment for Claimant and close the case. Signed by Magistrate Judge Daniel C. Irick on 9/13/2017. (RN)

UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF FLORIDA
ORLANDO DIVISION
STEPHEN EUBANKS,
Plaintiff,
v.

Case No: 6:16-cv-437-Orl-DCI

COMMISSIONER OF SOCIAL
SECURITY,
Defendant.

MEMORANDUM OF DECISION
Stephen Eubanks (Claimant) appeals from a final decision of the Commissioner of Social
Security (the Commissioner) denying his application for supplemental security income. Docs. 1;
18 at 1; R 17. Claimant argues that the Administrative Law Judge (the ALJ) erred by: 1) failing
to properly weigh the opinion of Claimant’s treating psychiatrist; 2) failing to properly characterize
Claimant’s visual limitations; and 3) posing a hypothetical question to the vocational expert that,
allegedly, did not adequately reflect Claimant’s limitations. Doc. 18 at 2. Claimant argues that
the matter should be reversed and remanded for an award of benefits or, in the alternative, for
further proceedings. Id. at 19-20. For the reasons set forth below, the Commissioner’s final
decision is REVERSED and REMANDED for further proceedings.
I.

THE ALJ’S DECISION.
On October 10, 2013, Claimant protectively filed an application for supplemental security

income. R. 17. Claimant alleged a disability onset date of September 20, 2013. Id. The ALJ
issued his decision on March 25, 2015. R. 17-28. The ALJ found that Claimant suffered from the
following severe impairments: scoliosis, a left eye impairment, and a bi-polar disorder. R. 19. The

ALJ found that Claimant had a residual functional capacity (RFC) to perform less than a full range
of medium work1 as defined by 20 C.F.R. § 416. 967(c), with following additional limitations:
[H]e can only occasionally perform tasks requiring far visual acuity.
He can perform only work involving simple tasks and following
simple instructions in an isolated environment, where he would
seldom (defined as less than 1/3 of the work day) have contact with
supervisors, co-workers and the public.
R. 21. In light of this RFC, the ALJ found Claimant was capable of performing various jobs in the
national economy – Claimant had no past relevant work. R. 26-27. In light of the foregoing, the
ALJ found that Claimant has not been disabled since his alleged onset date, October 10, 2013. R.
27.
II.

STANDARD OF REVIEW.
“In Social Security appeals, [the court] must determine whether the Commissioner’s

decision is supported by substantial evidence and based on proper legal standards.” Winschel v.
Comm’r of Soc. Sec., 631 F.3d 1176, 1178 (11th Cir. 2011) (quotations omitted).

The

Commissioner’s findings of fact are conclusive if supported by substantial evidence. 42 U.S.C. §
405(g). Substantial evidence is more than a scintilla – i.e., the evidence must do more than merely
create a suspicion of the existence of a fact, and must include such relevant evidence as a
reasonable person would accept as adequate to support the conclusion. Foote v. Chater, 67 F.3d
1553, 1560 (11th Cir. 1995) (citing Walden v. Schweiker, 672 F.2d 835, 838 (11th Cir. 1982) and
Richardson v. Perales, 402 U.S. 389, 401 (1971)). Where the Commissioner’s decision is
supported by substantial evidence, the District Court will affirm, even if the reviewer would have
reached a contrary result as finder of fact, and even if the reviewer finds that the evidence

1

Medium work is defined as “lifting no more than 50 pounds at a time with frequent lifting or
carrying of objects weighing up to 25 pounds. If someone can do medium work, we determine that
he or she can also do sedentary and light work.” 20 C.F.R. § 416.967(c).

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preponderates against the Commissioner’s decision. Edwards v. Sullivan, 937 F.2d 580, 584 n.3
(11th Cir. 1991); Barnes v. Sullivan, 932 F.2d 1356, 1358 (11th Cir. 1991). The Court must view
the evidence as a whole, taking into account evidence favorable as well as unfavorable to the
decision. Foote, 67 F.3d at 1560. The District Court “‘may not decide the facts anew, reweigh
the evidence, or substitute [its] judgment for that of the [Commissioner].’” Phillips v. Barnhart,
357 F.3d 1232, 1240 n.8 (11th Cir. 2004) (quoting Bloodsworth v. Heckler, 703 F.2d 1233, 1239
(11th Cir. 1983)).
III.

ANALYSIS.
Claimant maintains that the ALJ failed to properly weigh the opinions of his treating

psychiatrist, Dr. Earl Taitt, M.D., primarily because the treatment notes from Dr. Taitt were
illegible. Doc. 18 at 7-14. Claimant asserts that it is impossible to determine “how or even
whether” Dr. Taitt’s records were considered, or what his opinions were. Id. Therefore, Claimant
argues that the ALJ’s decision is not supported by substantial evidence. Id.
The Commissioner’s position is that the opinions of Dr. Taitt were discussed and
considered by the ALJ, and that Claimant’s “argument that the illegibility of Dr. Taitt’s treatment
notes prevented the ALJ from fully considering them is no more than mere speculation” and, thus,
“is unavailing.” Doc. 20 at 9. While the Commissioner notes that the ALJ never stated that Dr.
Taitt’s notes were illegible or difficult to read, the Commissioner does not actually assert that Dr.
Taitt’s notes are legible.
At step four, the ALJ assesses the claimant’s RFC and ability to perform past relevant
work. Phillips, 357 F.3d at 1238. The RFC “is an assessment, based upon all of the relevant
evidence, of a claimant’s remaining ability to do work despite his impairments.” Lewis v.
Callahan, 125 F.3d 1436, 1440 (11th Cir. 1997). The ALJ is responsible for determining the

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claimant’s RFC. 20 C.F.R. § 416.946(c). In doing so, the ALJ must consider all relevant evidence,
including, but not limited to, the medical opinions of treating, examining and non-examining
medical sources. See 20 C.F.R. § 416.945(a)(3); see also Rosario v. Comm’r of Soc. Sec., 490 F.
App’x 192, 194 (11th Cir. 2012).2
The ALJ must consider a number of factors in determining how much weight to give each
medical opinion, including: 1) whether the physician has examined the claimant; 2) the length,
nature, and extent of the physician’s relationship with the claimant; 3) the medical evidence and
explanation supporting the physician’s opinion; 4) how consistent the physician’s opinion is with
the record as a whole; and 5) the physician’s specialization. 20 C.F.R. § 416.927(c).
A treating physician’s opinion must be given substantial or considerable weight, unless
good cause is shown to the contrary. See 20 C.F.R. § 416.927(c)(2) (giving controlling weight to
the treating physician’s opinion unless it is inconsistent with other substantial evidence); see also
Winschel, 631 F.3d at 1179. There is good cause to assign a treating physician’s opinion less than
substantial or considerable weight, where: 1) the treating physician’s opinion is not bolstered by
the evidence; 2) the evidence supports a contrary finding; or 3) the treating physician’s opinion is
conclusory or inconsistent with the physician’s own medical records. Winschel, 631 F.3d at 1179.
As an initial matter, and critical to the Court’s analysis, Dr. Taitt is the only treating
physician whose treatment notes, records, or opinions were before the ALJ. Claimant had no other
treating physicians or other medical sources. Aside from Dr. Taitt’s records, the evidence before
the ALJ consisted of Claimant’s testimony, reports submitted by Claimant and his father, prison
intake screening records, short-term hospitalization records, a consultative psychological

2

In the Eleventh Circuit, unpublished decisions are not binding, but are persuasive authority. See
11th Cir. R. 36-2.

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evaluation, opinions from three state agency mental health consultants, and the findings from two
consultative examinations. R. 22-25. Indeed, the record in this case is a relatively short 404 pages.
Dr. Taitt began treating Claimant in July 2013, and continued that treatment through at
least June 2014, seeing Claimant on approximately thirteen separate occasions. R. 363-74; 383390. Dr. Taitt’s treatment notes consist of Dr. Taitt’s handwritten notations placed upon preprinted forms. Id. In some instances, Dr. Taitt circled pre-printed responses or checked boxes
corresponding to pre-printed options, and in other sections he hand-wrote responses in spaces
designated for his “Assessment” or “Plan,” amongst other things. Id. On occasion, Dr. Taitt’s
handwritten notes also appeared in the margins of these pre-printed forms. Id.
In considering Dr. Taitt’s treatment notes, the ALJ wrote the following:
Evidence from Earl Taitt, M.D., the claimant’s treating psychiatrist,
indicates that the claimant initially experienced noticeable symptom
improvement with Seroquel. Observations and findings from the
initial evaluation on July 2, 2013 reveal the claimant was
cooperative, fully oriented, and could pay attention and remember,
hut he was also preoccupied and disheveled, with abnormal motor
behavior, fair concentration, and rambling speech. Dr. Taitt
diagnosed a Bi-Polar I disorder, did not diagnose any kind of
personality or psychotic disorder, and assigned a GAF score of 50.
Subsequent progress notes through 8/27/13 document sustained
improvement: for a couple of months, the claimant’s motor activity
was consistently normal, he had good concentration, attention and
memory; his speech was logical, his thought content was normal,
and his appearance was normal. Dr. Taitt also noted the claimant
had above average intelligence (Exhibit 9F).
Dr. Taitt’s progress notes show the claimant’s symptoms worsened
in September 2013, and that the claimant’s mood varied from
appointment to appointment through June 2014, when evidence
from Dr. Taitt ends. Dr. Taitt’s findings and observations also
illustrate that the claimant’s mood swings affect his ability to
concentrate and interact with others, but do not totally preclude
either function. Even when the claimant has been physically
restless, hyperactive, irritable, and angry, he has been attentive and
cooperative with Dr. Taitt, and has retained a fair ability to
remember and concentrate. He has consistently denied homicidal or

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suicidal thoughts and his GAF score has remained at 50. Dr. Taitt
has gradually increased the claimant’s dosage of Seroquel in
response to increased symptoms, and the claimant has reported no
medication side effects (Exhibits 9F, 11F and 12F).
Considering the opinion evidence relevant to the claimant’s mental
functioning, the undersigned gives some weight to the GAF scores
Dr. Taitt assigned. Although a GAF score can offer some evidence
regarding the severity of the claimant’s mental impairment, it is not
dispositive on the issue. A GAF score is a mere snapshot of the
claimant’s ability to function at the particular time of the
assessment. It does, however, include factors such as legal, housing
or financial problems that are not properly part of the disability
analysis under the Social Security Act. That said, a GAF score of
50, indicating moderate problems in social or occupational
functioning, is consistent with Dr. Taitt’s observations and findings
that the claimant’s ability to concentrate and remember goes from
“good” to “fair” depending on his mood, and that his mood stability,
appearance and his ability to maintain eye contact are likewise
variable. Great weight is given to Dr. Taitt’s diagnosis of Bi-Polar
disorder with no secondary diagnoses (Exhibit 9F/6), as he is a
psychiatrist and personally treated the claimant for at least 12
months. Furthermore, Dr. Taitt’s notes show the claimant’s mood
varies between hyperactivity and depression, consistent with his
diagnosis.
R. 24.
Thus, the ALJ considered and weighed two opinions from Dr. Taitt. First, the ALJ gave
“great weight” to Dr. Taitt’s diagnosis of Bi-Polar disorder with no secondary diagnoses. Id.
Second, the ALJ gave “some weight” to the GAF scored that Dr. Taitt assigned to Claimant. Id.
In giving less than controlling weight to those GAF scores, the ALJ noted that while a GAF score
can offer some evidence of Claimant’s mental impairment, it is not dispositive. Id. The ALJ went
on to state that a GAF score is a “mere snapshot” of Claimant’s current functioning, and includes
some facts not relevant to the social security determination at hand. Id. The ALJ explained that
“a GAF score of 50, indicating moderate problems in social or occupational functioning,” was

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consistent with Dr. Taitt’s observations and findings in his treatment notes. Id. The ALJ discussed
no other opinion from Dr. Taitt.
As recognized by Claimant in his brief, while there does not appear to be an opinion from
the Eleventh Circuit directly on point, the Second and Eighth Circuits have specifically held that
the illegibility of important evidentiary material can warrant a remand for clarification and
supplementation. Miller v. Heckler, 756 F.2d 679 680-81 (8th Cir. 1985); Brissette v. Heckler,
730 F.2d 548, 550 (8th Cir. 1984); see also Cutler v. Weinberger, 516 F.2d 1282, 1285 (2d Cir.
1975) (illegible medical reports provide reviewing court with no way to determine whether the
Secretary fully understood the medical evidence before him). In Bishop v. Sullivan, 900 F.2d
1259, 1262 (8th Cir.1990), pertinent medical evidence was submitted to the ALJ prior to the
hearing consisting of sixty-five pages, twenty-six of which were illegible because of poor copy
quality or handwriting. Id. There, the Eighth Circuit held:
It is the ALJ’s duty to develop the record fully and fairly, even in
cases in which the claimant is represented by counsel. Dozier v.
Heckler, 754 F.2d 274, 276 (8th Cir.1985). Based on the record
before us, we cannot determine whether Bishop’s combined
impairments following his back surgery meet or equal a listed
impairment or whether he is otherwise disabled. We doubt that the
ALJ could properly decipher all the medical reports any better than
we could. On remand, the parties should determine which of the
existing medical records are relevant and provide the ALJ with
legible copies of these records or direct interrogatories to doctors
and hospital personnel. If the ALJ requires additional evidence to
make a disability determination, he should order consultative
examinations to be performed at the expense of the Social Security
Administration. See 20 C.F.R. § 404.1517(a) (1989).
Bishop, 900 F.2d at 1262.
Similarly, in “the Eleventh Circuit, the ALJ has the duty to develop a full and fair record
even when the claimant is represented by counsel.” Yamin v. Comm’r of Soc. Sec., No. 6:07-cv1574-ORL-GJK, 2009 WL 799457, at *12–14 (M.D. Fla. Mar. 24, 2009); see Graham v. Apfel,

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129 F.3d 1420, 1422 (11th Cir. 1997); Brown v. Shalala, 44 F.3d 931, 934 (11th Cir. 1995) (ALJ’s
duty to develop a full and fair record exists whether or not the applicant is represented). In Rease
v. Barnhart, 422 F. Supp. 2d 1334, 1372 (N.D. Ga. 2006), the court explained the connection
between the claimant’s burden and the ALJ’s duty as follows:
Although the burden of proof is on the claimant to prove disability,
the ALJ is under a duty to conduct a full and fair inquiry into all the
matters at issue. Ford v. Secretary of Health and Human Services,
659 F.2d 66 (5th Cir. 1981). Thus, in general, the claimant has the
burden of obtaining his medical records and proving that he is
disabled. 20 C.F.R. § 404.1512(a) and (c). On the other hand, the
Commissioner (ALJ) has the responsibility to make every
reasonable effort to develop the claimant’s complete medical
history, for at least the twelve months preceding the month in which
the claimant filed his application and, if applicable, for the twelve
month period prior to the month in which he was last insured. 20
C.F.R. § 404.1512(d).
...
When the medical evidence is inadequate for the Commissioner to
determine whether the claimant is disabled, the Commissioner has
the responsibility to re-contact the claimant’s treating physician(s)
or other medical source(s) and determine whether the additional
information the ALJ needs is available. 20 C.F.R. § 404.1512(e). If
the additional needed medical evidence is not readily available, then
the ALJ should obtain a consultative examination. 20 C.F.R. §§
404.1517 and 416.917; Sellers v. Barnhart, 246 F. Supp. 2d 1201
(M.D. Ala. 2002); Holladay v. Bowen, 848 F.2d 1206, 1210 (11th
Cir.1988); Caulder v. Bowen, 791 F.2d 872 (11th Cir. 1986);
compare Murray v. Heckler, 737 F.2d 934 (11th Cir. 1984).
422 F. Supp. 2d at 1372. Further, facing illegible treatment notes and medical records, the court
in Yamin explained its decision to remand as follows:
While a claimant’s failure to raise the argument to the district court
that the ALJ failed to fully develop the record generally results in
the waiver of that issue, if a court cannot determine whether
substantial evidence supports the ALJ’s decision, the case must be
remanded. See Robinson v. Astrue, 235 F. App’x 725 (11th Cir.
2007) (holding claimant waived argument that ALJ failed to fully
develop record when that argument was not raised in the district
court); Johnson v. Barnhart, 138 F. App’x 266, 271 (11th Cir. 2005)
(holding that if the Commissioner lacked sufficient evidence to

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make a disability determination remand is necessary). The Court
has reviewed the entire record and was unable to comprehend a
substantial portion of Dr. Kashfi’s treatment notes. It is unclear and
doubtful that the ALJ could have comprehended Dr. Kashfi’s notes.
Thus, it is unclear how the ALJ was able to discount Dr. Kashfi’s
opinions based upon his treatment notes. The Court finds the
opinions of the Second and Eight[h] Circuits persuasive, and
concludes that the case must be remanded without even reaching the
arguments of the parties because Dr. Kashfi’s treatment notes and
Medical Source Statement are critical to determining whether
substantial evidence existed to support the Commissioner’s decision
to deny Yamin’s claims.
2009 WL 799457, at 13-14.
Here, as already noted, Dr. Taitt’s treatment notes consist primarily of the selection of preprinted choices in combination with handwritten notes, appearing both in sections designated for
handwriting and also in the margins of the pre-printed pages. The handwritten portions of those
notes are almost entirely illegible, and that illegibility prevents this Court from meaningfully
reviewing the ALJ’s decision and determining whether that decision is supported by substantial
evidence. In making this determination, the Court is guided by the particular facts of this case,
including the fact that Dr. Taitt is the only treating physician whose records were considered by
the ALJ.
The Court has reviewed Dr. Taitt’s treatment notes side-by-side with the ALJ’s explanation
of those notes.

In doing so, it is clear that the ALJ’s discussion of Dr. Taitt’s notes is

overwhelmingly a discussion of the checked boxes and circled pre-printed choices contained on
Dr. Taitt’s forms, and lacks a discussion of many of Dr. Taitt’s actual handwritten notes. For
example, the ALJ discussed Dr. Taitt’s July 2, 2013 initial observations that Claimant “was
cooperative, fully oriented, and could pay attention and remember, but he was also preoccupied
and disheveled, with abnormal motor behavior, fair concentration, and rambling speech.” R. 24.
Of those descriptive terms, only the word “disheveled” – if indeed that was the word in the

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treatment notes – is not the result of Dr. Taitt circling a pre-printed descriptor. Id. at 371.
However, on the bottom portion of that same page of Dr. Taitt’s July 2, 2013 notes is a section
titled “Assessment,” which contains six, entirely illegible, lines of handwritten notes. R. 371.
Those handwritten “Assessment” sections are contained in several of Dr. Taitt’s treatment notes,
and they are almost entirely illegible. R. 367-70; 373. Thus, any opinions therein are not
susceptible to meaningful review by this Court, nor is there any indication that the ALJ considered
information contained within the “Assessment” portions of Dr. Taitt’s treatment notes. And the
“Assessment” section is not the only portion of Dr. Taitt’s notes that are illegible. Throughout Dr.
Taitt’s treatment notes there is handwriting that defies the Court’s ability to read or understand it.
As such, the ALJ’s decision not to discuss or weigh these “Assessments” and other handwritten
notes is not subject to any kind of meaningful review by this Court.
Further, the Court is troubled by the ALJ’s characterization of the GAF score assigned by
Dr. Taitt. GAF stands for “Global Functional Assessment.” Courts in this district recognize that
GAF scores are of “questionable value in determining an individual’s mental functional capacity.”
See Wilson v. Astrue, 653 F. Supp. 2d 1282, 1295 (M.D. Fla. Sept. 3, 2009); Gasaway v. Astrue,
2008 WL 585113 at *4 (M.D. Fla. Mar. 3, 2008). Nevertheless, GAF scores are routinely used by
“mental health physicians and doctors ... to rate the occupational, psychological, and social
functioning of adults.” See McCloud v. Barnhart, 166 F. App’x 410, 413 n.2 (11th Cir. 2006)
(citing American Psychiatric Association, Diagnostic and Statistical Manual of Mental Disorders
32 (Text Revision, 4th ed.2000)). Further, an ALJ must consider all materially relevant evidence
and “state with particularity the weight he gave the different medical opinions and the reasons
therefor.” Sharfarz v. Bowen, 825 F.2d 278, 279-80 (11th Cir. 1987); see also 20 C.F.R. §

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416.920(a)(3) (“We will consider all evidence in your case record when we make a determination
or decision whether you are disabled.”).
Here, Dr. Taitt assigned Claimant a GAF score of 50 on at least five occasions – never
more, and never less, so far as the Court can determine. R. 363; 366; 373; 385; 389. The ALJ
gave that GAF score only “some weight” for reasons related to the consideration of GAF scores
in general, but not because Dr. Taitt’s opinion in relation to that score was somehow undermined
by the medical evidence of record or Dr. Taitt’s own treatment notes. In doing so, The ALJ
described a GAF score of 50 as reflecting “moderate problems in social or occupational
functioning.” R. 24. This is simply wrong. “A GAF score of 41–50 indicates: “Serious
symptoms (e.g., suicidal ideation, severe obsessional rituals, frequent shoplifting) or any serious
impairment in social, occupational, or school functioning (e.g., no friends, unable to keep a
job).” DSM–IV at 32 (emphasis in original).” Norris v. Astrue, 2012 WL 2577529, at * 3 (N.D.
Ala. June 28, 2012) (quoting Diagnostic and Statistical Manual of Mental Disorders, 34 (4th Ed.))
(“DSM-IV”). Of course, a GAF score – by its very name – is an assessment of a person’s ability
to function. Here, the sections of Dr. Taitt’s treatment notes titled “Assessment” are almost
completely illegible. Thus, the Court has grave concerns that the ALJ’s error in characterizing
Claimant’s GAF score as only reflecting moderate symptoms may have derived, in some way,
from the fact that the ALJ – like this Court – could not read Dr. Taitt’s handwritten “Assessment”
and any medical opinions contained therein.
Because the Court is not capable of meaningfully reviewing the ALJ’s decision given the
illegibility of the treatment notes of Claimant’s only treating physician, this matter must be
remanded for further proceedings.

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This issue is dispositive and therefore there is no need to address Claimant’s remaining
arguments. See Diorio v. Heckler, 721 F.2d 726, 729 (11th Cir. 1983) (on remand the ALJ must
reassess the entire record); McClurkin v. Soc. Sec. Admin., 625 F. App’x 960, 963 n.3 (11th Cir.
2015) (per curiam) (no need to analyze other issues when case must be reversed due to other
dispositive errors).
IV.

CONCLUSION.
For the reasons stated above, it is ORDERED that:
1. The final decision of the Commissioner is REVERSED and REMANDED pursuant
to sentence four of 42 U.S.C. § 405(g); and
2. The Clerk is directed to enter judgment for Claimant and close the case.
DONE and ORDERED in Orlando, Florida on September 13, 2017.

Copies to:
Counsel of Record
The Court Requests that the Clerk
Mail or Deliver Copies of this order to:
The Honorable Joseph A. Rose
Administrative Law Judge
c/o Office of Disability Adjudication and Review
SSA ODAR Hearing Ofc.
3505 Lake Lynda Drive
Suite 300
Orlando, Florida 32817-9801

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